R v O'Connor [1999] VSCA 55

5. At the relevant time the offence of culpable driving carried a maximum gaol term of 15 years, but, after hearing a plea in mitigation of penalty, the trial judge sentenced the applicant to a term of imprisonment of five years and ordered that he not be eligible for parole until he had served three years of that term. The applicant has accepted his conviction but has sought leave to appeal against the sentence on a number of grounds, to which I will hereafter refer. Before I do so, however, I wish to briefly turn to the facts.

8. It is clear from the facts that were before the jury that the applicant was a young man who was, generally speaking, a hard worker and provided his family and his friends with much that they could be proud of. But, as was obvious to the trial judge on the plea, so was the deceased, and so much is evident from the victim impact statements which the judge had before him at the time of sentence.

11. On the Saturday night before the morning of this motor car accident the applicant had been on what can only be described as a "pub crawl" with one of his friends in the Frankston area. The drinking continued for a period of time between approximately 9 o'clock in the evening and 3.30 to 4 o'clock in the morning, when the two of them returned to the applicant's friend's house in Seaford. Notwithstanding that the applicant was obviously very tired - and I interpolate that he had had very little sleep on the Friday night as well - he chose to get into his Ford panel van and drive it home to Berwick. His answers to the police which were given shortly after the collision are illuminating.

He was asked: "What do you remember about that drive?"

He responded, "I honestly can't remember the light, but I remember I drove through the intersection and a car come out in front of me."

Answer: "Yeah, yeah, I actually remember driving. I remember it was pretty wet. I was taking it easy because I knew there was, there was, it was pretty crook conditions to drive in. Yes, I wasn't speeding, I was taking it easy."

Answer: "No, I wasn't, was not drunk. If I was drunk I wouldn't have made it out of probably Seaford."

Question: "How did you feel when you were driving?"

Answer: "I felt pretty tired but I thought I'd make it home okay, yeah."

Question: "How many times did you fall asleep on that journey?"

Answer: "Probably once or twice when I started to nod off and I had to wake myself up, yeah."

Answer: "I wound down the window and had a cigarette."

"Can you tell me everything you remember about the collision?"

Answer: "I remember going through an intersection and I hit a car. That was it. After that I can't remember."

Answer: "All I remember was I had the green light. I didn't go through a red light or an amber light

Question: "When did you first see the other vehicle?"

Answer: "I seen the vehicle at the last minute. I had no time to stop or do nothing."

Question: "So you're saying the vehicle was coming from the left on the South Gippsland Highway, is that correct?"

39. These answers were given to questions that were put to the applicant at the Dandenong Hospital not long after this collision had occurred, and credit must be given for the fact that the applicant was probably somewhat confused. However, the applicant was suggesting that the collision had occurred at the intersection of the South Gippsland Highway and Thompsons Road, and that the other driver had come out from his left-hand side and run into that side of his car. The evidence demonstrated that the collision had occurred in a "head-on manner" and nowhere near the intersection to which the applicant was then referring. The applicant had abandoned this description of the collision by the time of trial, but in his defence he persisted in his version that he was not at fault. It was said that he was on the correct side of the road and Holmes was the one who had drifted on to the incorrect side of the road. Such a view was completely at odds with the evidence led at the trial, and it is little wonder that the jury rejected it.

42. In passing sentence, his Honour said that he had no difficulty in concluding that the applicant had veered on to the incorrect side of the roadway, and that his incapacity to control the vehicle was largely caused by excessive consumption of alcohol, and, his Honour said, a session of irresponsible conduct had snuffed out the life of a much loved person and at the same time had visited much anguish upon the applicant and his family. Before he passed sentence his Honour said:

"I am told that since the accident you have not been as outgoing as previously and that obviously the fatality has had an effect upon you. Evidence was given that you were sad and regretful that you had killed a husband and father, and it was submitted to me that this had shown genuine remorse on your part. However, both Ms Moraitis and your mother indicated that you had never accepted responsibility for the accident. It has been said the real culpability for offences of this nature lies in getting behind the wheel whilst drunk in the first place. I received no indication that you are prepared to accept that you were at fault in driving when you had drunk excessively. If you had not driven your car then the fatality would not have occurred. I therefore cannot accept that there is total and genuine remorse on your part, and this is underpinned by the fact that you went into the witness box and gave the version of the accident which I have previously described."

46. Mr Tehan, Q.C., who appeared with Mr Wilkinson for the applicant, has argued a number of grounds in support of the contention that this sentence passed by his Honour is excessive. Firstly he submitted that the Court should receive what he describes as "new evidence" in the form of an affidavit of one Debra Smith, a clinical psychologist, to demonstrate that the applicant is suffering from severe post-traumatic stress disorder which places a different light on circumstances which existed at the time of sentence. Mr Tehan's submission is that, although there was some material before the sentencing judge to suggest that the applicant had been "troubled" by the consequences of the collision, it could now be seen that his mental state is far worse than his Honour thought.

49. Because an appeal against sentence is an appeal against the exercise of the trial judge's discretion on the material which is before him, and is not a re-exercise of that discretion by this Court, it will rarely be the case that the Court of Appeal will admit evidence of facts occurring after sentence which are said to demonstrate that the sentence was excessive. In exceptional circumstances an appellate court will admit evidence of post-sentence facts for the purpose of showing the true significance of influential facts existing at the time when the sentence was passed: see R. v. Babic [1998] 2 V.R. 79 at 80-81, per Brooking, J.A.; R. v. Rostom [1996] V.R. 97 at 99, per Charles, J.A. But evidence of facts and events which have arisen after sentence and which is said to show that the sentence imposed will bear more heavily on an applicant will usually not be admitted on appeal. Such matters are for the executive government and not for the appellate court.

52. The matters upon which Mr Tehan relies are, in my view, inadmissible. Even if one accepts that the opinion of Ms Smith is reliable and can be accepted by this Court, she is a clinical psychologist who has recently, and after sentence, assessed the applicant in prison. She says that:

"The traumatic nature of the events which occurred in 1996 and thereafter [i.e. the accident, the trial and prison] have contributed significantly to [the applicant's] current psychological problems."

56. Those problems, as I understand them, are said to emanate from a progressive post-traumatic stress disorder stemming from the motor car accident and worsening as a result of the trial and later incarceration. I would gather from what Ms Smith has to say that the symptoms of the disorder would have been apparent at trial but were not the subject of any professional opinion put before his Honour.

59. I would have no doubt that this motor car accident and its sequelae have triggered an emotional and stressful response in this young man. They were matters of which his Honour was conscious, notwithstanding that they were not described in the terms in which Ms Smith now describes them. They are not matters of which this Court, in my view, can take cognisance, because they do not fit into the rare category of circumstances which I have previously described. Ms Smith is not, of course, able to tell us how or at what rate the disorder which she describes had progressed to the time of trial. What she does say is that since incarceration the disorder has progressed to the point at which it manifested itself to her. Those circumstances, in my view, can scarcely come within the principle which empowers an appellate court to take cognisance of events occurring after sentence which show the true significance of facts in existence at the time of sentence. It would, I think, be disturbing if a stress disorder which existed at the time of sentence, and adequately described by those representing the accused, could be used as the basis for attacking the sentence after the accused had been ordered to serve a prison term, and a clinical psychologist then concluded that he or she exhibited symptoms of a progressive disorder which had been exacerbated by incarceration. The mere fact that a prisoner has exhibited a marked psychological reaction to incarceration cannot generally be used to show that his sentence was manifestly excessive, because those events are post-sentence; and, in view of the fact that their impact cannot be isolated from pre-sentence effects, their significance is not a matter for the appellate court: see R. v. Dorning (1981) 27 S.A.S.R. 129.

62. In my opinion there is nothing in Ms Smith's affidavit which suggests to me that there was any particular psychological factor influential in his Honour's sentence, the true significance of which can now be shown to have been misconstrued by his Honour. I would accordingly not admit the affidavit of Ms Smith, and I would reject this ground of appeal.

65. In support of ground 5, Mr Tehan submits that his Honour was in error in finding that it was a consideration relevant to the sentence that the applicant had gone into the witness box and had given a version of the collision which was not accepted by the jury. It was submitted that the error was disclosed because of the judge's comments to which I have already referred; namely that he could not accept that there was total and genuine remorse and that "this is underpinned by the fact that you went into the witness box and gave the version of the accident which I have previously described". There is, in my opinion, nothing in this ground of appeal. Of course it would be wrong for a sentencing judge to increase the penalty beyond that which the crime would otherwise attract simply because the prisoner had chosen to plead not guilty. But that, in my view, was not what his Honour was doing. Rather he was concerned to determine whether the applicant was entitled to any leniency on account of genuine remorse, a matter which had been put to him and a matter which he was considering at the time when he made the impugned remarks. In my view, in the circumstances of this case, he was perfectly entitled to find as he did.

68. The next ground of appeal alleges that his Honour should have taken into account the delay between the date of the accident and the time of trial. The reasons for delay were explained by the prosecutor to the judge early in the plea. Those reasons would seem to suggest that there was a delay beyond that which would normally have transpired in the order of six to seven months, because of the absence of a significant Crown witness. However, it is my view that it would be wrong to regard this as a specific error on the part of the trial judge, when no submission had been made to him that delay was a factor which should mitigate penalty. The fact that no such submission was made by experienced counsel who represented the applicant at trial might well suggest that the delay was not regarded as so significant as to render it a relevant factor for sentencing purposes or to warrant a submission that a failure to take it into account amounts to a specific error on his Honour's part. Mr Tehan suggests that the facts none the less were before the judge and were so powerful that his Honour should have taken account of them notwithstanding the absence of any specific submission by counsel for the applicant. Suffice it to say I do not agree with this submission and I would reject that ground of appeal.

71. The remaining grounds of appeal were argued together in support of the submission that the sentence is manifestly excessive. Counsel contended that the applicant is generally a person of good character and the commission of the offence was outside the ambit of that character, and that since the events occurred he has involved himself in many worthwhile projects in an endeavour to rehabilitate himself.

74. It has frequently been said that whether a sentence is manifestly excessive will admit of little argument. Mr Tehan has strenuously argued that the particular circumstances of this case should compel this Court to the view that this sentence is manifestly excessive. The particular circumstances to which he refers are what he describes as the unreasonable delay in bringing the case to trial, combined with the efforts made by the applicant in that time to re-establish himself. Certainly the judge took account of the latter circumstance, although, as I have already indicated, he did not specifically advert to delay.

77. Be that as it may, I am afraid that I do not see this sentence as being beyond the range open to the judge in the circumstances of this case. On the contrary, in my view, it was a sentence well open to his Honour in those circumstances.

80. If there is still a residual opinion existing in this community that the offence of culpable driving is not to be treated like other criminal offences because it is "a tragedy for all concerned" - and I use those words advisedly in the context in which arguments have been advanced in this case - then, in my view, the time has come for such views to be dispelled. Offences of culpable driving are commonly committed by persons who are of good character, but it must be understood that the community will not tolerate the taking of human life by acts of gross negligence of the sort that occurred in this case. The offence is a species of involuntary manslaughter, and it must be treated as such.

83. For those reasons I would dismiss the application.

98. The formal order of the Court will be that the application for leave to appeal against sentence is dismissed.